It's Not a Game of Monopoly

In an earlier blog entry, I found myself arguing with Lord Macaulay’s famous 1841 speech about the extension of copyright and its impact on the free trade of ideas. Macaulay argued that: ‘Copyright is monopoly, and produces all the effects which the general voice of mankind attributes to monopoly. .... The effect of monopoly generally is to make articles scarce, to make them dear, and to make them bad’.

In contrast, I suggested that music collection societies, which operate as natural monopolies in most countries, produce the opposite effects. Through their blanket licences they help to make music accessible and they sometimes make it cheap. In fact, in their ability to facilitate the business-to-business trade in music, they provide the context in which the public is able to receive a great deal of its music for free. They also help us to access a variety of music, as most of their licensing schemes provide standard rates. Thus it costs users no more to play a Beyoncé record than it does for them to play one Bis.

In addition, I argued that it is those artists who manage to gain individual control over their copyrights who are most likely to commit the evil that Maccaulay describes. It has generally been established and successful performers, such as Taylor Swift, Prince or Thom Yorke, who have managed to escape blanket licensing, whether that is the licensing of a record company or the licensing of a collection society. There are, of course, many positives about the degree of control that they have been able to gain over their careers. This control has nevertheless enabled them to make their work scarce (it doesn’t appear on streaming services) and to sometimes made it dear (as those forced to purchase 1989 on CD will testify).

Collection societies have, in general, been transparent and fairly even-handed. Their licensing schemes are made public and they offer standard terms. There are some injustices, nonetheless. PRS, for example, has had policies that divert income from popular music towards classical repertoire. MCPS, meanwhile, operates licensing schemes that become cheaper the higher up you go. Smaller record companies have to pay licences on the basis of the number of records of manufactured, while larger companies pay on the basis of the number of copies sold. The former have to pay their bills upfront; the latter are invoiced at a later date. Larger companies also pay lower commission rates and benefit from further economies of scale if they use MCPS to licence throughout Europe.

These various concessions don’t compare, however, to the secrecy and inconsistency that surrounds streaming deals. While some artists are escaping monopolies in order not to appear on streaming platforms, record companies and publishers are escaping monopolies in order to deal directly with the same sites. As I have previously documented, record companies maintain that streaming falls under the ‘making available’ right and they believe it is analogous to the sale of sound recordings rather than the broadcast of digital radio. As a consequence they have been able to escape the monopolistic licensing that public performance would entail. They have conducted their own deals with streaming companies and they have avoided the 50% royalty that PPL accords to performing artists.

In some ways, this isn’t a great break with tradition. Record companies have always made most of their deals directly. The same is not true of the publishing companies: the majority of their mechanical and performance licensing has taken place via the monopolistic rates and regulations of the collection societies. By making direct deals with the streaming companies they are entering unchartered waters. And this is precisely what attracts them: they want to escape those collective rules. It’s a complicated business nonetheless. Although record companies have convinced themselves that streaming is largely ‘mechanical’ in nature, the publishing world regards it as being equally divided between the performing and mechanical rights. However, while it is relatively easy for publishing companies to withdraw from MCPS and to self-administer the mechanical right for streaming purposes, they have no such jurisdiction over the performing right. Songwriters assign this right to their collection societies, rather than to their publishers. Consequently, in this area it is the collection societies who have control.

In Europe, the publishers’ solution to this problem has been to form ‘Special Purpose Vehicles’ with the collection societies. These SPVs entitle the publishers to deal directly with streaming companies and secure terms that cover both the performing and mechanical rights. Any terms reached must be agreed by the collection societies, however. Once the royalties have been calculated the income will make its way to artists either via their collection societies (the performing right share, presumably) or directly from their publishers (if this aspect of the mechanical right is escaping the collection societies it will mark another another area of income that is less readily identifiable as recorded music).

The publishers argue that licensing directly enables them to negotiate higher royalties for their artists, as they escape the flat demands of the collection societies. They also argue that this method is more efficient for the streaming companies, as these deals can be completed more quickly and can expand beyond the home country remit of the collection societies. Songwriters are less comfortable. According to the Music Managers Forum many of them would prefer for streaming income to fall under the remit of the collection societies:

possibly because they trust their CMO [collection society] more than their label or publisher; or because payments via CMOs often circumvent contractual terms that enable labels or publishers to retain income; or because they feel collective licensing is fairer to all, because everyone earns the same per play fees, rather than bigger artists or rights owners having a better deal.

Nevertheless, if they are signed with a major publisher, they will find that they have no choice. Sony/ATV has entered into an SPV with PRS and GEMA, Universal has one with SACEM, Warner/Chappel has SPVs with a number of collection societies including PRS, while BMG has a joint venture with GEMA. Meanwhile, Kobalt, who are probably the most innovative publishing company operating today, have actually bought the collection society, AMRA, which they employ to conduct their SPVs.

            And what does this mean for the consumer? In the first instance, it might make some music scarce. Although these direct deals are of potential benefit to the streaming companies because they can licence one publisher for multiple territories, the drawback is that they have to do deals with each publisher individually. Some catalogues may well be left out. These joint ventures might also make music dear. If publishers are able to negotiate higher royalties for their songwriters, then the consumer may well end up paying for them. This could be directly, via subscription charges, or indirectly, via the advertising fees that result from fremium services. In addition, some music might end up being dearer than others, which in turn might make it scarce. The withdrawal from monopoly tumbles on and on . . .